EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

09.03.18

RALIA, Inventor Protection Act, STRONGER Patents Act and Other Attacks on PTAB (Because It Raises the Patent Bar)

Posted in America, Deception, Law, Patents at 1:33 am by Dr. Roy Schestowitz

Lobbyists and bribed politicians still attempt to undo patent reform in Washington

Don't enter

Summary: Anti-PTAB legislations (whose sole purpose is to lower patent quality) try to make their way past common sense; the patent microcosm is boosting these while courts carry on doing their job, which nowadays more often than not involves rejection of erroneously-granted US patents

THE USPTO would almost certainly be granting patents like a patent-printing machine if it wasn’t for constant scrutiny from patent courts and groups like the EFF, CCIA and so on. Sadly, as we’ve just noted, 35 U.S.C. § 101 isn’t taken seriously enough by the Office. The new Director, a litigation person whose firm worked for Donald Trump, keeps trying to water it down. It cannot be done unless courts leave an opening/gap to be cherry-picked; as things stand, SCOTUS supports Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) and the Federal Circuit gave away nothing but Berkheimer, which the Director (Iancu) was happy to exploit irrespective of the facts (Berkheimer has not changed anything in the courts).

We’ve been carefully watching the latest attacks on patent quality. Watchtroll, for instance, was belatedly catching up with Click-To-Call at PTAB (among other news that may mean patent law firms will carry on rotting away). Robert Schaffer wrote about IPR time-bar* [1, 2] on a couple of occasions and together with his colleague Joseph Robinson he was covering the matters/affairs of the Federal Circuit (CAFC) in light of recent cases, such as this 35 U.S.C. § 285 case (typically about whether the accused gets awarded legal fees by the trigger-happy accuser). We’ve pretty much covered all these cases before or at least mentioned these in passing. Joseph Robinson wrote about another important CAFC case — one wherein we saw software patents invalidated by a high court. The defendant, BuySeasons, did a good job leveraging the law against US Patents numbers 6,035,294, 6,243,699, and 6,195,652 [1, 2]. Quoting Watchtroll:

On August 15, 2018, the Federal Circuit affirmed the invalidation of BSG Tech LLC’s (“BSG”) patents as ineligible subject matter. See BSG Tech LLC v. Buyseasons, Inc., No. 2017-1980, 2018 WL 3862646 (Fed. Cir. Aug. 15, 2018) (before Reyna, Wallach, and Hughes, J.) (opinion by Hughes, J.).

BSG asserted three patents with similar specifications that were directed to a “self-evolving generic index” for organizing information stored in a database — U.S. Patents No. 6,035,294, 6,243,699, and 6,195,652. The patents were “self-evolving” because users of the database could “add new parameters for use in describing items”, with guidance from the system, which would allow the database to be searched according to the new and existing parameters.

We generally prefer not to quote Watchtroll, but in order to understand what patent maximalists are up to it’s helpful to keep an eye on Watchtroll. Last week they used the term “IP Assets” in the headline (three lies in two words). Katharine Wolanyk generally alludes to universities using taxpayers-funded research to feed patent trolls that then attack the public as “Legal Finance” (what a breathtaking euphemism!). Her innovation seems to be that of euphemisms for bad practices that should be banned if not severely punished for (penalties, fines, maybe even sanctions).

Fenwick & West LLP’s Nina Srejovic and Charlene M. Morrow wrote a few days ago about IPRs in relation to appeals; This too was about a recent CAFC case. To quote:

The Federal Circuit further restricted a petitioner’s ability to appeal a decision by the Patent and Trademark Appeal Board upholding the validity of a patent. The court this month found in JTEKT v. GKN Automotive that a competitor who filed a petition for inter partes review could not appeal the PTAB’s validity determination because its product design was not definite enough to create a concrete and substantial risk of infringement or the likelihood of a claim of infringement. If this line of decisions stands, it will make it harder for competitors to clear the field of conflicting patents that they believe are invalid, as there would be no ability to appeal from an adverse Board decision.

They generally try anything they can to thwart PTAB and thus defend invalid/bogus patents from scrutiny. Gene Luoma, writing for Watchtroll yesterday (a Sunday), promotes the misleadingly-named “Inventor Protection Act” — one among several bills striving to take down patents like his. “This is why we need your support to help us restore our patent rights,” he concluded, mistaking patents for “rights” (they’re not rights, technically and legally speaking). He pleaded: “Please help us in our fight to pass H.R. 6557, the Inventor Protection Act, which has been introduced into the House of Representatives. After a decade of destruction of our patent rights, this bill restores patent rights to inventors like me who own their patents, helping us to continue supporting our families with the money earned from our inventions.”

This is nonsense. He also uses his disability to add an angle that has nothing to do with his patent/s; sympathy-garnering exercise at best. If his patent is worth what he believes, why should he fear PTAB? In our experience, people who loathe PTAB are those whose patents are of questionable quality (and deep inside they know it).

A few days earlier the American Enterprise Institute wrote about RALIA, another anti-PTAB bill. Michael Rosen from this patent zealots’ front group (American Enterprise Institute has always been misleadingly named) is trying to reduce patent quality and help patent trolls, not enterprises. Here is what he wrote (soon to be boosted by patent maximalists):

Shortly after several new patent reform bills were introduced in Congress over the summer, a new, even more radical piece of legislation has entered the scene.

[...]

RALIA would also rewrite the statute on patent eligibility, making it easier to obtain software and so-called business method patents, a process that the Supreme Court’s 2014 landmark Alice decision has strongly affected. The legislation contends that “the Supreme Court’s recent jurisprudence concerning subject matter patentability has harmed the progress of science and the useful arts” and loosens its strictures.

No, it does the exact opposite. But don’t let facts get in the way of career lobbyists.

Russell Slifer, part of the patent microcosm, then defines “bad” as what’s bad for the litigation ‘industry’. The lobbyists’ media of choice, The Hill, seems very happy if not eager to let these vultures do their lobbying. Slifer promotes the STRONGER [sic] Patents Act as follows: “One good place to start is the Support Technology and Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act, H.R. 5340, introduced by Reps. Steve Stivers (R-Ohio) and Bill Foster (D-Ill.) and its companion Senate bill, S.1390, introduced last year by Sen. Chris Coons (D-Del.). These bills address some of the negative unintended consequences of the 2011 America Invents Act. To truly return America as a world leader in intellectual property protection, Congress must resolve to reverse the Supreme Court and allow our new industries to protect their innovations in the U.S, not China and Europe.”

These are all just anti-PTAB bills whose net effect is reduction in quality assessment and decline in patent quality. They rely on the perception that there’s anger, that there’s a scandal, and that there are feuds.

Alluding to last month’s RPX setback and Judge Reyna’s role in an earlier case, McDermott Will & Emery’s Brian A. Jones wrote about news several months too late (almost two months). Why now? To quote:

Addressing whether an inter partes review (IPR) petition was time barred under 35 USC § 315(b), the US Court of Appeals for the Federal Circuit vacated and remanded a finding by the Patent Trial and Appeal Board (PTAB) that the petitioner was not a real party in interest to the entity that had been served with an infringement complaint in district court more than one year earlier. Applications in Internet Time, LLC v. RPX Corp., Case Nos. 17-1698, -1699, -1701 (Fed. Cir. July 9, 2018) (O’Malley, J) (Reyna, J, concurring).

Applications in Internet Time (AIT) sued Salesforce.com, a software company, for patent infringement. Salesforce was served with a copy of the complaint on November 20, 2013.

[...]

Judge Reyna wrote separately to point out an independent ground for vacating the PTAB’s decision, namely that it failed to address whether RPX was also a “privy” of Salesforce. A petitioner is time barred under § 315(b) from filing a petition more than one year after the “petitioner, the real party in interest, or privy of the petitioner is served with a complaint.” Judge Reyna explained that a number of additional factors must be considered to determine privity, including whether a legal relationship exists between the parties or whether one party acted as a proxy/representative for the other party. In the case of RPX and Salesforce, a contractual relationship existed, and RPX may have been acting as Salesforce’s proxy. Therefore, Judge Reyna would have instructed the PTAB to also thoroughly review whether RPX and Salesforce were in privity in these circumstances.

This is one of those rare PTAB cases where patent maximalists have something to gain. They will carry on cherry-picking and then boosting such cases. Knowing that politicians soon return to work (many come back tomorrow), they want to provoke them into endorsement of anti-PTAB bills.
___
* In his latest PTAB post, Kevin E. Noonan provided a more balanced interpretation, including some background:

Patent law has traditionally been considered to be fraught with traps for the unwary, which in practice just means that it is unwise to assume anything (see Carl S. Koening, “Clarifying Patent Terminology and Patent Concepts – An Introduction to Some Basic Concepts and Doctrine,” 15 Cath. U. L. Rev. 1 (1966)). Petitioner for an inter partes review proceeding, Vizio, Inc., v. ATI Technologies ULC suffered the consequences of one of those traps, when its petition for review of U.S. Patent No. 7,633,506 was deemed untimely under 35 U.S.C. § 315(b) because the petition was not filed within one year of Patent Owner filing suit against Petitioner Vizio. While a seemingly simple docketing matter, in this case the error arose over when (i.e., what date) the complaint was filed.

As set forth in the Board’s Decision denying institution, the facts are these. Vizio filed its IPR petition on February 1, 2017, one year after receiving the complaint. Patent Owner filed an affidavit of service, establishing that Patent Owner had mailed the complaint to Vizio on January 30, 2017. The question before the Board was whether the one-year time period under § 315(b) for filing an IPR petition ran from the date of mailing by Patent Owner or the date of receipt of the complaint by Petitioner Vizio.

To answer this question, the Board looked to Federal Rule of Civil Procedure 4(h)(1)(A), which states that a corporation is served “in the manner prescribed by Rule 4(e)(1) for serving an individual.” Fed. R. Civ. P. 4(e)(1) states that service on an individual under the Rules is done “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located” (or where service is made). Thus, the Board reasoned, the time and manner where service was accomplished was a matter of Delaware law (where the Patent Owner was incorporated).

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Just Published: Irrational Ignorance at the Patent Office

    Iancu and his fellow Trump-appointed "swamp" at the USPTO are urged to consult academics rather than law firms in order to improve patent quality in the United States



  2. Microsoft Paid the Open Source Initiative. Now (a Year Later) Microsoft is in the Board of the Open Source Initiative.

    The progression of Microsoft entryism in FOSS-centric institutions (while buying key "assets" such as GitHub) isn't indicative of FOSS "winning" but of FOSS being infiltrated (to be undermined)



  3. Jim Zemlin's Linux Foundation Still Does Not Care About Linux Desktops

    We are saddened to see that the largest body associated with Linux (the kernel and more) is not really eager to see GNU/Linux success; it's mostly concerned about its bottom line (about $100,000,000 per annum)



  4. Links 23/3/2019: Falkon 3.1.0 and Tails 3.13.1

    Links for the day



  5. The Unified Patent Court is Dead, But Doubts Remain Over the EPO's Appeal Boards' Ability to Rule Independently Against Patents on Nature and Code

    Patents used to cover physical inventions (such as engines); nowadays this just isn't the case anymore and judges who can clarify these questions lack the freedom to think outside the box (and disobey patent maximalists' dogma)



  6. Patent Law Firms Still Desperate to Find New Ways to Resurrect Dead Software Patents in the United States

    There's no rebound and no profound changes that favour software patents; in fact, judging by caselaw, there's nothing even remotely like that



  7. Links 22/3/2019: Libinput 1.13 RC2 and Facebook's Latest Security Scandal

    Links for the day



  8. Why the UK Intellectual Property Office (UK-IPO) Cannot Ignore Judges, Whereas the EPO Can (and Does)

    The European Patent Convention (EPC) ceased to matter, judges' interpretation of it no longer matters either; the EPO exploits this to grant hundreds of thousands of dodgy software patents, then trumpet "growth"



  9. The European Patent Office Needs to Put Lives Before Profits

    Patents that pertain to health have always posed an ethical dilemma; the EPO apparently tackled this dilemma by altogether ignoring the rights and needs of patients (in favour of large corporations that benefit financially from poor people's mortality)



  10. “Criminal Organisation”

    Brazil's ex-President, Temer, is arrested (like other former presidents of Brazil); will the EPO's ex-President Battistelli ever be arrested (now that he lacks diplomatic immunity and hides at CEIPI)?



  11. Links 21/3/2019: Wayland 1.17.0, Samba 4.10.0, OpenShot 2.4.4 and Zorin Beta

    Links for the day



  12. Team UPC (Unitary Patent) is a Headless Chicken

    Team UPC's propaganda about the Unified Patent Court (UPC) has become so ridiculous that the pertinent firms do not wish to be identified



  13. António Campinos Makes Up Claims About Patent Quality, Only to be Rebutted by Examiners, Union (Anyone But the 'Puff Pieces' Industry)

    Battistelli's propagandistic style and self-serving 'studies' carry on; the notion of patent quality has been totally discarded and is nowadays lied about as facts get 'manufactured', then disseminated internally and externally



  14. Links 20/3/2019: Google Announces ‘Stadia’, Tails 3.13

    Links for the day



  15. CEN and CENELEC Agreement With the EPO Shows That It's Definitely the European Commission's 'Department'

    With headlines such as “EPO to collaborate on raising SEP awareness” it is clear to see that the Office lacks impartiality and the European Commission cannot pretend that the EPO is “dafür bin ich nicht zuständig” or “da kenne ich mich nicht aus”



  16. Decisions Made Inside the European Patent Organisation (EPO) Lack Credibility Because Examiners and Judges Lack Independence

    The lawless, merciless, Mafia-like culture left by Battistelli continues to haunt judges and examiners; how can one ever trust the Office (or the Organisation at large) to deliver true justice in adherence or compliance with the EPC?



  17. Team UPC Buries Its Credibility Deeper in the Grave

    The three Frenchmen at the top do not mention the UPC anymore; but those who promote it for a living (because they gambled on leveraging it for litigation galore) aren't giving up and in the process they perpetuate falsehoods



  18. The EPO Has Sadly Taken a Side and It's the Patent Trolls' Side

    Abandoning the whole rationale behind patents, the Office now led for almost a year by António Campinos prioritises neither science nor technology; it's all about granting as many patents (European monopolies) as possible for legal activity (applications, litigation and so on)



  19. Where the USPTO Stands on the Subject of Abstract Software Patents

    Not much is changing as we approach Easter and software patents are still fool's gold in the United States, no matter if they get granted or not



  20. Links 19/3/2019: Jetson/JetBot, Linux 5.0.3, Kodi Foundation Joins The Linux Foundation, and Firefox 66

    Links for the day



  21. Links 18/3/2019: Solus 4, Linux 5.1 RC1, Mesa 18.3.5, OSI Individual Member Election Won by Microsoft

    Links for the day



  22. Microsoft and Its Patent Trolls Continue Their Patent War, Including the War on Linux

    Microsoft is still preying on GNU/Linux using patents, notably software patents; it wants billions of dollars served on a silver platter in spite of claims that it reached a “truce” by joining the Open Invention Network and joining the LOT Network



  23. Director Iancu Generally Viewed as a Lapdog of Patent Trolls

    As Director of the Office, Mr. Iancu, a Trump appointee, not only fails to curb patent trolls; he actively defends them and he lowers barriers in order to better equip them with bogus patents that courts would reject (if the targets of extortion could afford a day in court)



  24. Links 17/3/2019: Google Console and IBM-Red Hat Merger Delay?

    Links for the day



  25. To Team UPC the Unified Patent Court (UPC) Has Become a Joke and the European Patent Office (EPO) Never Mentions It Anymore

    The EPO's frantic rally to the very bottom of patent quality may be celebrated by obedient media and patent law firms; to people who actually produce innovative things, however, this should be a worrisome trend and thankfully courts are getting in the way of this nefarious agenda; one of these courts is the FCC in Germany



  26. Links 16/3/2019: Knoppix Release and SUSE Independence

    Links for the day



  27. Stopping António Campinos and His Software Patents Agenda (Not Legal in Europe) Would Require Independent Courts

    Software patents continue to be granted (new tricks, loopholes and buzzwords) and judges who can put an end to that are being actively assaulted by those who aren't supposed to have any authority whatsoever over them (for decisions to be impartially delivered)



  28. The Linux Foundation Needs to Speak Out Against Microsoft's Ongoing (Continued) Patent Shakedown of OEMs That Ship Linux

    Zemlin actively thanks Microsoft while taking Microsoft money; he meanwhile ignores how Microsoft viciously attacks Linux using patents, revealing the degree to which his foundation, the “Linux Foundation” (not about Linux anymore, better described as Zemlin’s PAC), has been compromised



  29. Links 15/3/2019: Linux 5.0.2, Sublime Text 3.2

    Links for the day



  30. The EPO and the USPTO Are Granting Fake Patents on Software, Knowing That Courts Would Reject These

    Office management encourages applicants to send over patent applications that are laughable while depriving examiners the freedom and the time they need to reject these; it means that loads of bogus patents are being granted, enshrined as weapons that trolls can use to extort small companies outside the courtroom


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts